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Taking housing from scandal to right

The law can help: starting with a referendum

by David Langwallner


There are human rights to food, water, healthcare, a minimum standard of living, and housing. Despite western opposition they found their way into the International Covenant on Economic, Social and Cultural Rights (1966). They have wrongly been denied as rights in Ireland since O’Reilly v Limerick Corporation [1988]. This article is about the right to housing which is most famously recognised in The UN’s Universal Declaration of Human Rights (1948).

“There can be no fairness or justice in a society in which some live in homelessness, or in the shadow of that risk, while others cannot even imagine it”, according to Jordan Flaherty [in Floodlines]. Yet the Irish State is not providing enough housing that is adequate and affordable.

The problem is easily addressed. For as US educationalist Jonathan Kozol reminds us: “The cause of homelessness is lack of housing”.

Clearly we need to build more houses. They should be of excellent quality, sustainable, built in accordance with a spatial strategy and using new funding models, such – for example – as have been suggested by the credit unions which seem to recognise a feasible and financially viable model which government ignores.

In the boom although Ireland completed up to 20 new homes per 1,000 population – the highest rate in the EU, less than two new homes were for social housing, one of the lowest rates in the EU. More starkly, since 2008 the capital expenditure on social housing has been ruptured by successive budgets with cuts of 80% (from €1.3bn to €275m).

Certainly Labour Minister Alan Kelly’s Urban Regeneration and Housing Act legislates for social housing. It requires developers to provide “up to 10%” of their housing units for social housing, though even Martin Cullen, as well as Ministers ever since, maintained the rate of “up to 20%” introduced in the 2000 Planning Act, albeit that the percentage was for “social” but also “affordable” housing.

The new Act also allows the dubious retrospective application of reduced development contributions and the introduction of a vacant site levy. Elswehere the Minister promoted a reduction in apartment sizes. All in the supposed interest of increasing housing supply.

Moreover, the last government failed to address problems in the rental market. The current rent supplement for a single person is €520 per month and for a couple, €750 per month, despite the fact that the cost of renting a two bedroom property in Dublin city, for example, is €1,700 per month.

That government also tolerated an epidemic of evictions by banks and vulture funds that it has not adequately regulated. Instead it permitted them to engage in unfair commercial practices often in breach of both consumer protection and EU law. The non-interventionist obsession, nurtured in the voodoo logic of neo-liberalism, also drove failure to nationalise the banks permanently in the public interest – to provide public-interest lending, to secretive and apparently profoundly unstrategic deal-making in the deeply suspect NAMA and to a banking inquiry which failed, through lack of zeal, to hear key evidence; and inevitably to define the root cause of the canker.

Why has NAMA not intervened to provide public infrastructure, – parks, museums and above all housing? Its website states:
“As at end June 2015, NAMA had identified over 6,542 residential properties as potentially suitable for social housing. Of these, demand has been confirmed by local authorities for over 2,500 properties, of which 1,386 have been delivered for social housing use. Confirmation of demand is a matter for local authorities and is not something in which NAMA has a role”.

NAMA has been interventionist in its deal-makings, why not in its public-interest interventions?

In short we have become a socially dislocated nation where many of our citizens do not feel part of the society that has clearly abandoned them. The level of homelessness in Dublin city centre in particular now generates an almost surreal zombie-like feel to the streets late at night, redolent of New York in the early 1990s or the streets of Nairobi where multitudes walk the streets and fields in a non-directional and tragically aimless way.

The question arises what causes such matters and what can be done.

First, it is obvious that the root cause was our banking collapse responsibility for which our top lawyers, civil servants, bankers and their symbiotic plutocrats have been serially let off the hook, most recently by the feeble Banking Inquiry which toiled under a smokescreen of legal manoeuvres. It was morally correct of Pearse Doherty and Joe Higgins not to sign their names to such a charade.

In my practice as a barrister I have noticed that the banks have pursued the policy of reneging on their contractual obligations to reinstate consumers to tracker mortgages after expiry of a fixed-rate period. Significant litigation in the Four Courts is now geared at understanding precisely what went on in this context.

Further, banks with no interest in Ireland – Danske Bank and the Bank of Scotland – simply left the room and disposed of their assets leaving to others to hike up interest payments and/or sell the assets off to the underworld of vulture funds.

The banks also bundled assets. In a particularly scandalous case now wending its ways through the courts Danske Bank refused a repayment offer of €90,000 from the consumer and then sold the house via receiver to a composite property portfolio at the bargain-basement price of €60,000. This is simply an outrage but it passed unprobed. Recent reportage suggests that the vulture funds are now gathering for mass evictions and in Tyrellstown we have witnessed a vulture fund perpetrating a mass eviction even where the residents can afford to pay their rent. As Village went to press, it seemed a new government would prioritise homeless, housing and mortgage difficulties. However, the commitment it the ‘Programme for Partnership’ between Fine Gael and Independents and in the ‘Confidence and Supply’ deal with Fianna Fáil are notably nebulous.

Why does the incoming government not also investigate the proposal from High Court master, Edmund Honohan, that the state should simply buy back housing sold to vulture funds, at market price? It is constitutionally permissable as long as reasonable, not market, value is paid in compensation.

The truth is that advice made to state agencies and from the Attorney General’s office down the years is often much more conservative than the pronouncements of the Supreme Court over the last decades.

It should also be stressed in the interests of candour that there is seemingly an ideological preference amongst much of the judiciary to uphold the practices of banks and vulture funds, in a misplaced belief that this is necessary in a functioning market or ethically preferable to avoid moral hazard. Such viewpoints betray scant understanding of the plight that ordinary people find themselves in and flow from a class-driven lack of empathy.

Consumers often stand alone as lay litigants in repossession proceedings, let down by the parlous nature of our legal aid system and opposed by well paid and tag-teams of lawyers often fully abreast of every stratagem and ruse.

Some months ago Village published an Open Letter on Homelessness to the Taoiseach from Mike Allen, Director of Advocacy for Focus Ireland. He was scathing about the last government’s denial that resources are the problem. But he also queried political will, and underlined problems that derived from the delays associated with borrowing these days.

Social housing must be a priority for the incoming government. Dr Donal McManus, CEO of the Irish Council for Social Housing (ICSH) says the most serious obstacle hampering implementation of the Social Housing Strategy is the failure to make enough sites available to housing associations:
“There are over 800 sites in public ownership that could be assessed for social housing and transferred from local authorities to housing associations. Housing associations could then access private finance to deliver much-needed homes. However, this is not happening due to unnecessary infrastructural obstacles and delays”.

He outlines three critical issues for housing associations that need to be addressed: lack of sites for development; the urgent need for coordination of funding schemes for social housing; and the absence of development programmes for housing associations.

The Essential Repair Grant was discontinued in 2011, when it reached its lowest figure at €92,000, down from nearly €52m in 2008.

A militant socialist programme would, in my view, come up against the vested interest of the Eurocracy and will as Prime Minister Tsipras found out be subverted. So what is really needed is the return of social democratic interventionism, the merits of which were outlined by the economist John Maynard Keynes. We could also embrace some of the more equality-driven tenets of John Rawls who posits an egalitarianism that restricts liberty only to the minimum amount necessary to achieve important (egalitarian) goals.

So what can be done?

Either by way of a new direct democracy initiative or a state-led referendum under Article 46 of the Constitution. we need a constitutional amendment to establish a right to housing.

In this respect the Economic and Social Committee of the UN has indicated in General Comment 4 (1991) that the human right “to adequate housing, which is derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights”.

In India the Right to Housing has been established as an emanation of the right to life and as a basic survival right intrinsic to life and quality of life.

Under Clause 7 of the Canadian Charter which protects the right to life and security, a right to housing is negatively accepted: where even informal settlements exist they cannot be taken away.

The South African constitution establishes the right in Article 26. Section 28 separately guarantees the right of children to shelter.

Such rights are read subject to progressive realisation and reasonable allocation of resources. The Constitution also specifies an immediately enforceable specific minimum right against forced or arbitrary evictions. The South African constitutional court has interpreted this provision in a number of cases particularly Joe Slovo (2010) which requires

1. Meaningful consultation before eviction.
2. Alternative relocation if eviction proceeds.
3. No eviction unless the land is being put to productive use.

I recommend either legislatively or constitutionally the immediate implementation of this with one further embellishment: that an arbitrator be appointed to determine on the facts of a particular case whether the amount that a consumer can pay is sufficient in the circumstances. That arbitrator should also be able to probe the banks or the vulture funds as to how much they could practically gain if they sold the property on the open market or sought to bundle it as in the example cited involving Danke Bank.

The arbitrator would of course reject spurious defences and cases underpinned by multiple or vast borrowings, but the mechanism would in effect recalibrate the system towards Rawlsean fairness, and also establish some equality of arms for the parties.

Finally, there is no question in my view that a government has an ethical obligation to provide anyone evicted with another home, however humble – not a hotel-based sop.

The right to housing does not yield a right to a home in Killiney but to some sort of shelter , a minimum for human dignity.

We need a vision but, even more immediately, we need leadership.


David Langwallner is a barrister at Great James Street Chambers London